5 questions about John Boehner’s lawsuit against Barack Obama

The GOP-led House is set to take its first big step Wednesday toward launching a high-profile lawsuit charging President Barack Obama with failing to carry out his constitutional duty to enforce the law.

Republicans have complained about Obama’s actions on issues ranging from immigration to welfare to the minimum wage, but the suit is expected to focus narrowly on the Affordable Care Act and the decision to defer for one to two years a requirement that employers provide health insurance starting in 2014.

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The House Rules Committee will debate the merits of the potential lawsuit at a hearing Wednesday morning.

Regardless of what the lawsuit looks like, Obama and his allies are laughing off the litigation, which they believe will make liberals angry and strike swing voters as a waste of time and money on the part of congressional Republicans. “Their big idea has been to sue me,” the president said mockingly during a stop in McLean, Virginia, on Tuesday. “That’s what they’re spending time on — a political stunt that wastes America’s time and taxpayer dollars.”

House Speaker John Boehner has painted the effort in principled terms. “This isn’t about Republicans versus Democrats; it’s about the legislative branch versus the executive branch, and above all protecting the Constitution,” the speaker said last week. “The current president believes he has the power to make his own laws — at times even boasting about it.”

Here is POLITICO’s look at the legal questions surrounding the lawsuit:

1) What chance does it have?

Not much, according to many legal analysts. Even some sympathetic to claims of executive branch overreach say Boehner’s lawsuit is the equivalent of a triple-bank shot.

“It’s a hare-brained idea,” said Stan Brand, a Democrat and former general counsel to the House of Representatives. “I think there’s a case to be made that Obama has exceeded the recent history of executive overreaching, but I don’t know that it’s remediable in court — or should be.”

The key problem for the House to overcome is a legal concept called standing, which requires that the party bringing a suit demonstrate an actual, concrete injury that goes beyond a general interest in seeing the law enforced.

“There’s just no way a court would find that the House of Representatives as an institution has been harmed by President Obama attempting in good faith to implement the ACA,” said Catholic University law professor Victor Williams.

But proponents of the suit insist that the very fact that it’s hard to find an individual injured enough to sue supports the idea that the House can do so. “If we have that kind of system [where no one can sue to enforce the law], the president doesn’t need Congress anymore, all he needs is the pen and the phone — or maybe only the pen,” said Chapman University law school professor Ronald Rotunda.

Even if a judge buys that the House has been injured institutionally, there are a variety of other hurdles, like the courts’ traditional reluctance to entertain questions deemed “political” in nature and the judiciary’s ability to fashion a remedy for Obama’s alleged deviation from the law.

Defenders say even if the House suit dodges all those roadblocks, Obama’s action — or inaction — on enforcing the ACA is well within executive authority. They point to prior cases where presidents or other executive officials have deferred enforcement of new legal requirements, such as a decision by President George W. Bush in 2006 to not penalize seniors for missing a deadline to sign up for prescription drug coverage under Medicare.

“This is a routine feature of implementing complicated laws like the Affordable Care Act. All administrations have done it,” said Simon Lazarus of the Constitutional Accountability Center, who’s set to testify against the suit Wednesday.

2) What’s the best-case scenario for the GOP?

Perhaps the most significant reason not to dismiss the House suit as a sure loser is that other cases the experts have scoffed at in recent years — such as the challenge to Obamacare’s individual mandate and another over recess appointments — have gone all the way to the Supreme Court, resulting in losses or very close calls for the administration.

“I never would have thought, 10 years ago or even five years ago, that recess appointments would ever get litigated at the Supreme Court,” Rotunda said. “If there is a theme here, it’s when it gets to the Supreme Court, the president loses,” the professor said, pointing to a string of defeats at the court for presidents from Richard Nixon to Bill Clinton to Obama on executive power issues.

There have also been signs in recent years that the Supreme Court is more willing to see the judiciary wade into politically sensitive fights.

In 2012, the Supreme Court ruled, 8-1, that lower courts were wrong to bow out of a lawsuit challenging the State Department’s refusal to comply with a law requiring it to enter the word “Israel” to the place of birth on U.S. passports when an American born in Jerusalem so requested.

At oral arguments in the case, Justice Sonia Sotomayor said she was reluctant to allow the president to “ignore” the law.

“If we call this a political question and don’t address the merits, the outcome is that the president is saying that he’s entitled to ignore the Congress. I don’t know what kind of message that sends, but it’s a little unsettling that a court charged with enforcing the laws passed by Congress [is] basically saying we are not going to determine whether this law is constitutional or unconstitutional,” Sotomayor said.

But Justice Antonin Scalia has said Congress doesn’t really need the courts in a fight with the chief executive.